Microsoft's Patent Cunning

Glyn Moody
February 26, 2009

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Over the last few years, Microsoft's threats to open source have dwindled to basically one idea: that somehow bits of free software “infringe” on software patents that Microsoft claims to own. The first serious appearance of this idea was back in 2004, when Steve Ballmer referred to a study that he claimed indicated Linux violated more than 200 patents. This sent shivers through the open source world, until the author of that study said that Ballmer was using his work in a misleading way.

Then things went quiet until 2007, when Microsoft was a little more explicit, claiming that free software violated 235 of its patents. Again, people started running around like headless chickens, expecting lawsuit after lawsuit to rain down upon top open source programs.

But instead of following up this threat with action, Microsoft went into deep, mysterious silence, refusing to give any more details on exactly which patents were involved, or what it intended doing about them. And that silence became deeper and deeper – until yesterday, when Microsoft final launched a patent infringement action involving Linux.

But here's a funny thing: it was not against the main GNU/Linux companies, nor against global successes like Apache or Firefox; instead, it was against the in-car navigation company TomTom:

Microsoft filed suit against TomTom today, alleging that the in-car navigation company's devices violate eight of its patents -- including three that relate to TomTom's implementation of the Linux kernel.

It might seem strange, at first sight, that Microsoft has gone after a company that is so peripheral to the open source world. Some commentators, like Matt Asay, see this as proof that Microsoft is not actually declaring war on open source, but just a company that happens to use it. But I beg to differ.

For me, the fact that the first patent action involving open source should be against TomTom – and not against any other better-known company – seems to me precisely the point of that action, and something that Microsoft has done for a number of (very shrewd) reasons.

First, there is the fact that taking on Red Hat – to say nothing of taking on IBM, say, with probably the biggest patent portfolio around – would be insanity. The cost would be vastly greater, and there is the risk of tit-for-tat patent retaliation. Far easier to take on a company that probably has neither the will nor the finances to fight such a suit to the bitter end. In the present case, Microsoft might reasonably hope that TomTom will settle quickly, which will bring it two things.

The first, almost as a by-product, is some money from the settlement, without even needing to fight for it. But the second element, much more important, is that it will send a signal to any smaller company daring to use this open source stuff that they run the risk of being on the receiving end of similar suits from Microsoft.

Thanks to the widespread publicity generated by this long-awaited move, Microsoft even gets the bonus of being able to spread its FUD much more widely than usual – particularly throughout the embedded community, which is turning increasing to Linux. People will suddenly perceive Linux as risky, even though – or rather, especially as - nothing will have been tested in court. Meanwhile, of course, Microsoft does not have to face the direct wrath of the entire open source community – which would be a pretty fearsome thing – or the serried ranks of lawyers employed by companies like IBM. It's the perfect approach.

Of course, the central problem lies with a patent system that grants patents for (a) software and (b) ideas that are neither original nor non-trivial. Microsoft's move stands as a further warning to the European Union not to permit such a dysfunctional approach to patents to take hold on this side of the Atlantic – an all-too real threat now that there are concerted moves to create a Community Patent for Europe that would do precisely that.